As James Kachmar previously wrote on the IP Law Blog, the man who was photographed as a naked baby in 1991 for Nirvana’s iconic “Nevermind” album cover is now suing the band for distributing child pornography. Scott Hervey and James discuss the Ninth Circuit’s opinion on the case in this episode of The Briefing.

Watch this episode on the Weintraub YouTube channel here.

James:

In 1991, the grunge band Nirvana was one of the most popular musical acts in the United States with its anthem “Smells like Teen Spirit”, which was featured on its album Nevermind. Many will remember the cover of that album, which featured a naked baby swimming underwater and reaching for a dollar bill on a fishing hook. Three months after its release, Nevermind rose to the top of the Billboard 200 rankings and since then has sold over 30 million copies. The picture on the album was licensed for use on other merchandise, such as t-shirts, and was also the subject of various parodies. Now, 30 years later, Nirvana, its surviving members, and its record companies face a civil lawsuit for allegedly distributing child pornography by the now-grown man who was depicted on the album cover as a baby. I am James Kachmar from Weintraub Tobin, and I am joining Scott Hervey from Weintraub Tobin to talk about this case on the next installment of “The Briefing.”

Scott:

James, welcome back to The Briefing. This case, the case of Elden versus Nirvana, has been on my mind since I read your excellent article on the case. Can you give us some background?

James:

Sure. Scott, the baby in that photo, is now a gentleman. His name is Spencer Elden, and he was four months old at the time the photograph was taken. He turned 18 in 2009 12 years later in 2021, at the age of 30, he filed a lawsuit, and after two rounds of amended complaints, filed a second amended complaint in January 2022. Mr. Elden asserts a single claim against the defendants for a violation of 18 USC section 22 55, which allows victims of child pornography to bring a civil cause of action for their injuries.

Scott:

And, James, what is the nature of Mr. Elden’s complaint? What’s it based on? What is it based on?

James:

Mr. Elden’s complaint alleges that the cover of Nevermind depicting him in the nude constitutes child pornography and that the defendants, quote, knowingly possessed, transported, reproduced, advertised, promoted, presented, distributed, provided, and obtained, end quote, this alleged child pornography depicting him. He further alleges that the image has been reproduced and redistributed during the ten years preceding his lawsuit, and since then, pointing out that Nevermind had been rereleased in September 2021, claimed that he had suffered personal injury as a result of the ongoing violations of section 22 55.

Scott:

So initially, the defendants moved to dismiss Mr. Elden’s complaint, arguing that it was barred by the applicable tenure statute of limitations for such claims. The district court agreed with the defendants and dismissed the complaint with prejudice. Mr. Elden appealed that dismissal to the 9th Circuit. And what happened on appeal, James?

James:

Well, Scott, just days before Christmas last year, the 9th Circuit issued its opinion in Elden versus Nirvana, LLC, and reversed the dismissal of his claims. Importantly, the 9th Circuit, in its decision, did not decide whether the album cover, in fact, constituted child pornography. Rather, it only decided whether his claims were timely. The issue of whether the album cover constitutes child pornography will be decided on remand by the lower court.

Scott:

So, what was the basis for the 9th Circuit’s reversal of the district court’s dismissal?

James:

Well, the 9th Circuit began by examining the text of the statute of limitation provisions in section 22 55, which set forth two pertinent time frames. First, the plaintiff must have been a minor when victimized by the violation, such as the distribution of child pornography. And two, the plaintiff must have suffered personal injury as a result of the violation, regardless of whether the injury occurred when the plaintiff was a minor or as an adult. The 9th Circuit made clear that while the violation of the criminal law must have initially occurred while the plaintiff was a minor, the plaintiff could pursue a claim for personal injury that did not occur until after he or she became an adult.

Scott:

Okay, and how does the tenure statute of limitations apply to the violation? Then when can the plaintiff bring a claim either? Well, the plaintiff can bring a claim that was based on an injury that occurred either before or after the plaintiff was an adult.

James:

Well, Scott, a plaintiff can bring a claim within ten years after the date of which the plaintiff reasonably discovers the violation that forms the basis of the claim.

Scott:

Okay, but this album was released in the early nineties, and that’s well over 30 years ago. So how is it that the 9th Circuit found the statute of limitations, a ten-year statute of limitations, had not yet run?

James:

Well, the 9th Circuit examined various types of personal injury the victim of child pornography may sustain, such as injury to the child’s reputation and other injuries, such as emotional wellbeing or emotional distress. The 9th Circuit continued by drawing an analogy to reputational harm that a plaintiff who is the victim of a defamatory statement may suffer. In using this analogy, the 9th Circuit pointed out that victims of child pornography, like someone who has been defamed, may suffer a new injury. Upon the republication of the offensive material, the 9th Circuit concluded that with regard to Mr. Elden’s claims, quote, we hold that if a predicate criminal offense occurred when the plaintiff was a minor, the statute of limitations does not run until ten years after the victim reasonably discovers a personal injury resulting from the offense, which may include republication of the child pornography. That was the basis of the predicate criminal offense, end quote.

Scott:

So, the first prong of the statute would require Mr. Elden to bring his claim within ten years after the date on which he discovered the use of the photos. There was no dispute that Mr. Elden was aware of the distribution of the Nevermind cover at a very young age, and thus, he could reasonably discover any additional violations of the statute as they occurred. So, to the extent a violation occurred in 2009 when Mr. Elden turned 18, he would have to bring his actions by 2019 to avoid the ten-year bar under the first prong of the statute of limitations. Had the statute only contained that type of statute of limitations, Mr. Elden’s claim would have likely been barred, right?

James:

That’s correct, Scott. However, the second prong of the statute of limitations provision allows a complaint to be brought within ten years from the date on which the plaintiff reasonably discovers the personal injury that forms the basis for his or her claim. Under this prong, the 9th Circuit concluded that Mr. Elden had timely alleged a claim for violation of section 22 55. While he alleged that the violations began in 1991 when the photograph was taken, and he was still a minor, it wasn’t until the rerelease of Nevermind in 2021 that he had sustained additional personal injuries that formed the basis of his claim. The 9th Circuit concluded that because of that rerelease and other republications after 2011, which could give rise to personal injuries under the second prong, Mr. Elden had ten years from those dates to file his complaint. And under this approach, the 9th Circuit concluded that his complaint had been timely.

Scott:

The 9th Circuit was very clear in its rejection of the defendant’s claim that the statute of limitations for violations of section 22 55 should run against a particular offender when a plaintiff, quote, knows that a particular offender is responsible for the predicate offense and subsequent injuries. The 9th Circuit said that this was not supported by the statute’s text, and logically, the child pornography victim suffers the same injury when a new individual or the original creator redistributes the image.

James:

Right, and the 9th Circuit also rejected the defendant’s argument that the plaintiff’s claim should be treated like those other cases in which a plaintiff may not have discovered all of the latent or the full extent of his or her injuries from the initial violation, which would not normally amount to a new injury. Rather, the 9th Circuit found that Mr. Elden was alleging new injuries that stemmed from each redistribution or republication of the album covered during the ten years prior to his filing of the lawsuit, and the court concluded those would be within the statute of limitations.

Scott:

Additionally, it’s important to point out the 9th Circuit rejected the defendant’s argument that Congress’s codification of a discovery rule in this specific statute displaces any common law discovery principles. The 9th Circuit reason that Mr. Elden was not arguing that he had belatedly discovered injuries arising from the initial violations of section 22 55, but rather he discovered new injuries caused by the defendant’s new actions, the 2021 rerelease of Nevermind within the limitations period. The 9th Circuit concluded that because the district court had erroneously determined that the statute of limitations barred Mr. Elden’s claim, the district court had erred. Thus, the 9th Circuit reversed the district court’s dismissal and remanded the case back to the district court. So, James, it seems that Mr. Elden will now have an opportunity to finally litigate whether the Nevermind album cover is child pornography and whether he is entitled to at least some amount of damages resulting from the redistribution of the album in 2021.

James:

That’s correct, Scott.

Scott:

And so, James, what’s the lesson? There’s got to be a lesson from this case. What’s the lesson here?

James:

I think the Elden case is a good reminder for potential plaintiffs to consider whether the republication of offending material can give rise to a new claim within the applicable statute of limitations. This approach may be useful in pursuing claims for copyright infringement where the initial infringement may have occurred years ago, but there may be acts of recent republication that could give rise to new causes of action for infringement.

Scott:

That’s true, James, and a very good point raised. James, thanks for joining us today to discuss this case.

James:

Thank you for listening to this episode of “The Briefing”. We hope you enjoyed the episode. If you did, please remember to subscribe, leave us a review, and share this episode with your friends and colleagues. And if you have any questions about the topics we covered today, please feel free to leave us a comment.